Legitimising Regulatory Production Under Conditions of Scientific Uncertainty: The Role of the ECJ

Abstract

The regulation of scientifically uncertain risks to health and the environment requires the regulator to balance unquantifiable incommensurables, which may have re-distributive consequences. Such decisions are controversial because they cannot be taken objectively. As such, they must be democratically legitimated, which means they have to fulfil two democratic ideals: They must emerge out of a discourse that is deliberative, rather than strategic; and they must be responsive to public concerns and arguments. Responsiveness is of concern because membership of the Community both restricts the capacity of national regulators to respond to the public and transfers regulatory powers to more 'distant' European institutions. If, on the other hand, regulatory power is returned to national regulators there is the danger that it will not be use deliberatively. When called upon to do so, the ECJ is responsible for reviewing the decisions of both national and Community regulatory institutions. National regulators are subject to a 'constitutional' style of review, European regulators to an 'administrative law' style of review. Both operate in ECJ’s jurisprudencial shadow, which has a fundamental impact on their regulatory decision-making. The ECJ can use it to promote the two democratic ideals. This paper examines a number of principles of review through which the ECJ might steer the Community’s regulatory system towards greater legitimacy when dealing with scientifically uncertain risks.